Unintended Consequences

DougSimpson.com/blog

Prof. Lessig maintains that the nature of cyberspace is about to flip from unregulability to regulability, through the use of "architectures of control." As examples, he introduces digital certificates, encryption and the public key infrastructure (PKI). He considers recent history of government action to increase the regulability of the Net, including requiring copy degradation in Digital Audio Tape (DAT) systems; the "V-Chip" in televisions; the failed "Clipper Chip" initiative and the 1998 Digital Millenium Copyright Act (DCMA) ban on software designed to defeat copyright management schemes.

He suggests that indirect governmental regulation could come through facilitating a certificate-rich Net, in which users must provide digital credentials to access certain services. He finds that increasing commercial applications on the Net increases government's ability to regulate indirectly. "When commerce writes code, then code can be controlled, because commercial entities can be controlled." Id p. 53.

He also sees certification tools as enabling regulation across state and international borders in ways not practical today. "With a simple way to verify citizenship, a simple way to verify that servers are discriminating on the basis of citizenship, and a federal commitment to support such local discrimination, we could easily imagine an architecture that enables local regulation of Internet behavior." Id p. 55-56. Lessig sees the market forces pressing towards the "zoning" of cyberspace based upon individual users' certificate qualifications.

Lessig ends the first part of the book with a public policy question for the reader:
"How the code regulates, who the code writers are, and who controls the code writers -- these are questions that any practice of justice must focus in the age of cyberspace. The answers reveal how cyberspace is regulated. My claim in this part of the book is that cyberspace is regulated, and that the regulation is changing. Its regulation is its code, and its code is changing." Id. p 60.

Prof. Lessig introduces a schematic of an individual as a dot, surrounded by four larger dots titled Architecture, Market, Norms and Law, each a source of constraints upon the individual. He reminds us that Law can modify the influence of the other three on the individual, and thereby constrain indirectly. He criticizes indirect regulation because "it muddies the responsibility for that constraint and so undermines political accountability. If transparency is a value in constitutional government, indirection is its enemy." Id p. 96.

He also uses the concept of constitutional "translation," and offers the example of the dissent of Justice Brandeis in Olmstead v. United States, 277 U.S. 438 (1928). In Olmstead, the Court decided that a telephone wiretap did not violate the Fourth Amendment because it was not a physical trespass. Brandeis argued that the Amendment should be translated so as to preserve its meaning despite changes in the technology since its enactment. Prof. Lessig says that Brandeis "wanted to read it differently, we would say, so that it protected the same" and points to this dissent as "a first chapter in the fight to protect cyberspace." Lessig, op cit, p. 116. Brandeis' dissenting viewpoint was not adopted until 1967, with the decision in Katz v. United States 389 U.S. 347 (1967), in which Justice Stewart's opinion created the "reasonable expectation of privacy," the core value of which was the protection of people, not places.

Regarding intellectual property, Prof. Lessig notes that a least two sorts of property protection are possible in cyberspace: "One is the traditional protection of law. The other protection is a fence, a technological device (a bit of code) that (among other things) blocks the unwanted from entering." Lessig, op cit p 122. He credits to a former research assistant the idea that: "since the intent of the 'owner' is so crucial here, and since the fences of cyberspace can be made to reflect that intent cheaply, it is best to put all the incentive on the owner to define access as he wishes. The right to browse should be the norm, and the burden to lock doors should be placed on the owner." Id. p. 123. This raises the basic question, says Prof. Lessig: "Should the law protect certain types of property -- in particular, intellectual property -- at all?" Id. p. 123.

Prof. Lessig goes on to assert that private fences (code) can displace public law as the primary protector of intellectual property in cyberspace. "We are not entering a time when copyright is more threatened than it is in real space. We are instead entering a time when copyright is more effectively protected than at any time since Gutenberg. The power to regulate access to and use of copyrighted material is about to be perfected." He goes on to point to Mark Stefik's work concerning "trusted systems" used to track and control copies of copyrighted material. "What copyright seeks to do using the threat of law and the push of norms, trusted systems do through the code." Lessig, op cit p. 130.

But the professor points out that public interests lie with not giving perfect control to the owners of intellectual property. "The law has a reason to protect the rights of authors, at least insofar as doing so gives them an incentive to produce. With ordinary property, the law must both create an incentive to produce and protect the right of possession; with intellectual property, the law need only create the incentive to produce." Id. p. 133. Fair use, for example, is one limit of copyright law, a limit "constitutionally structured to help build an intellectual and cultural commons." Id. p. 135. The limited duration of copyright protection is another. Lessig asks if private code built to protect intellectual property will also be written to include 'bugs' like fair use and limited terms of protection, concluding that "Loss of fair use is a consequence of the perfection of trusted systems." Id. p. 137.

Another loss is anonymity -- trusted systems need to track use and charge for it, yet monitoring destroys anonymity. Under the "Cohen Theorem," says Prof. Lessig, reading anonymously is "so intimately connected with speech and freedom of thought that the First Amendment should be understood to guarantee such a right," quoting an article in Conn. Law Review 28 (1996) (p. 981, 982). Lessig argues that cyberspace should be architected to preserve a commons to replace that inherent before code made possible "perfect control," pointing the reader to Boyle, "Shamans, Software and Spleens" (Harvard Univ. Press 1997).

Chapter 11 deals with privacy, and suggests three elements behind the constitutional concept of privacy: 1) to minimize intrusion (the right to be left alone); 2) preserve dignity; 3) constrain the power of the state to regulate. The author sees encryption as improving privacy, but argues also for "a kind of property right in privacy." Id. p. 160, and explains why his position is different for privacy rights than it is for intellectual property rights: "In the context of intellectual property, our bias should be for freedom. *** We should take a grudging attitude to property rights in intellectual property; we should support them only as much as necessary to build and support information regimes." Id. p. 162.

Prof. Lessig sees the architecture of the Net as a top protector of free speech, through which architecture the First Amendment (in code) has been effectively exported to the world. One way that happened is by removing architectural restraints on instant global publication of information and opinions, but also removing the function of a publisher that would edit for truth and establish a reputation. "In a world where everyone can publish, it is very hard to know what to believe." Id. p. 171. He addresses means of using the architecture in the application space to control troublesome content such as pornography within the limits of Ginsberg v. New York, comparing a "zoning" approach to a "filtering" approach. He also warns about the hazards of filtering that is both perfect and invisible, and argues for less control over speech than over privacy, and less control over intellectual property.

Code becomes more abstract in its later chapters as it addresses the latent ambiguities inherent in the conflicts and overlaps of competing sovereigns with interests in behavior in cyberspace. "We should understand the code in cyberspace to be its own sort of regulatory regime, and that this code can sometimes be in competition with the law's regulatory regime." Id. p. 205. He sees the emergence of globally unified regulation through code, shifting power from sovereigns to software, suggesting to the reader a reading of Wriston's "The Twilight of Sovereignty". (Scribner 1992). He also sees a certificate-rich Net as re-enabling sovereigns to claim some of their authority: "Sovereigns get this. They will come to understand that there is a different architecture for the Net that would enable their own control. When they do, they will push to facilitate the predicate to this architecture of regulability -- certificates. And when they do, we again will have to decide whether this architecture of regulability is creating the cyberspace we want." Id. p. 207-208.

An important, thought provoking book that should be required reading, and re-reading, for any student of cyberspace and the modern world.

Lawrence Lessig, "Code and Other Laws of Cyberspace" (Basic Books, 1999).